UN Tribunal: A Prosecutor's “Tunnel Vision”

Analysis

A Lebanese woman walking past the tomb of slain Lebanese Prime Minister Rafiq Hariri in downtown Beirut. The UN-backed tribunal investigating the 2005 assassination of former Lebanese Prime Minister Rafiq Hariri said on 16 August 2011, it had published the full indictment. (Photo: AFP - Joseph Eid)

On August 17, the pre-trial Judge at the Special Tribunal for Lebanon (STL) Daniel Fransen ordered the public release of the indictment for the assassination of former Lebanese Prime Minister Rafic Hariri. Fransen deemed the evidence presented by prosecutor Daniel Bellemare as sufficient preliminary evidence to proceed to trial. Fransen's findings do not imply that the indicted persons are guilty, but merely establishes the precedent that there is enough material for them to be tried. Bellemare will have to prove that the accused are guilty “beyond reasonable doubt,” a difficult task considering the circumstantial nature of the evidence presented in the indictment.

In an email interview with Al-Akhbar, STL spokesperson Marten Youssef said Judge Fransen will not seek expert advice on the validity of technical information mentioned in the indictment from outside the Office of the Prosecutor. When asked if Fransen may contact people in Lebanon to verify information present in the report, Youssef’s answer was also a “no.”

In an email interview with Al-Akhbar, STL spokesperson Marten Youssef said Judge Fransen will not seek expert advice on the validity of technical information mentioned in the indictment from outside the Office of the Prosecutor.

The wording of the indictment may be interpreted as politically motivated and therefore lacking impartiality. An example of this bias appears in paragraph 59 of the indictment, where Bellemare states that "all four accused are supporters of Hezbollah, which is a political and military organization in Lebanon. In the past, the military wing of Hezbollah has been implicated in terrorist acts." Bellemare does not offer a reference supporting his assertion that Hezbollah was involved in terrorism, and, so far, no international judicial body has issued a decision describing Hezbollah as a terrorist organization. In fact, there is no international consensus surrounding Hezbollah's 'terrorism' status, and the UN does not recognize Hezbollah as a terrorist organization. Several countries, including the US, Israel, and Canada have officially labelled the group as a terrorist organization — though, notably, the European Union has not. Bellemare seemingly chose to include his personal political opinion and perhaps the views of some of his colleagues in an international indictment.

The STL is the first international tribunal to indict someone for a terrorism crime. Instead of targeting suspects affiliated to internationally recognized terrorist organizations such as al-Qaeda, the first terrorism indictment is aimed at Hezbollah, a Lebanese resistance movement. This does not come as a surprise for those who monitor events in the Middle East. Hezbollah represents a threat to the security of Israel, something unacceptable to the US and other Western powers. The investigation into the assassination of Hariri may have been a golden opportunity to undermine Hezbollah.

Chief STL Investigator Michael Taylor played a central role in putting together the indictments. Taylor served as "Head of Intelligence, Counter-Terrorism Command, at New Scotland Yard from March 2004 to August 2006."[1] Presumably, he has also directed the investigations concerning Hezbollah. The US is also monitoring the situation. A US Congressional Report issued on 8 October 2010 stated that "in March 2010, STL Prosecutor Daniel Bellemare questioned several Hizballah officials, including Hajj Salim, who heads the Special Operations Department, Mustafa Badreddine, head of the counter-intelligence unit, and Wafiq Safa, chief of security."[2]

Target: Nasrallah

A review of the Tribunal’s Statute shows that the top leadership of Hezbollah will likely be indicted should anyone affiliated or trained by the organization become the subject of an indictment. The Tribunal’s Statute states that “with respect to superior and subordinate relationships, a superior shall be criminally responsible for any of the crimes (…) committed by subordinates under his or her effective authority and control, as a result of his or her failure to exercise control properly over such subordinates, where: (a) The superior either knew, or consciously disregarded information that clearly indicated that the subordinates were committing or about to commit such crimes; (b) The crimes concerned activities that were within the effective responsibility and control of the superior; and (c) The superior failed to take all necessary and reasonable measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.”[3]

The head of Lebanon's Hezbollah parliamentary bloc Mohamed Raad speaks during a news conference in Beirut. Raad spoke out against the the indictment issued by the Special Tribunal for Lebanon. (Photo: REUTERS - Cynthia Karam)The head of Lebanon's Hezbollah parliamentary bloc Mohamed Raad speaks during a news conference in Beirut. Raad spoke out against the the indictment issued by the Special Tribunal for Lebanon. (Photo: REUTERS - Cynthia Karam)

In light of Hezbollah's allegedly sophisticated organizational structure, and given the size and gravity of the crime under investigation — more than two tons of explosives had to be transported and placed in a vehicle, and a large number of people had to be mobilized to collect information about the target’s transportation and daily schedule — the STL prosecution is likely to link top officials in Hezbollah's chain of command, including Hezbollah Secretary General Hassan Nasrallah, to the crime.

International Justice or Double Standards?

Meanwhile, Hezbollah's repeated calls for investigating possible Israeli involvement in the assassination remain unanswered. The 11 reports submitted by the UN's fact finding mission between October 2005 and February 2009 to the Security Council, and the indictment recently filed, do not point to any possible Israeli involvement in the Hariri assassination.

In an interview conducted last year, Bellamare publicly revealed that he interviewed Hezbollah officials, but refused to answer questions about interviewing Israelis. Bellemare apparently does not consider identifying witnesses in a criminal investigation “related to the investigation.” He issued a statement three months later on 23 November 2010 identifying Hezbollah officials as witnesses, claiming that “the Office of the Prosecutor’s decision not to comment on matters relating to the investigation will not change. This decision is based on considerations of utmost concern for the integrity of the investigation and the safety of victims, witnesses, suspects and staff. Preserving confidentiality is essential for the success of the investigation.”[4]

As Bellemare metamorphosed from a commissioner of the UNIIIC in 2008 to an STL Prosecutor today, his vow of confidentiality has seemingly become conflated with political bias. The more concrete metamorphosis, however, concerns the transformation of the “highest standards in international criminal justice” stated in Security Council Resolution 1757/2007 to investigative practices serving the political aspirations of the US and Israel.

Indictment timeline

January 17 – The Prosecutor Daniel Bellemare submits an indictment for review to the Pre-Trial Judge Daniel Fransen.

March 11 – Bellemare expands the scope of the indictment filed on 17 January 2011.